Fiji Magistrates Bench Book - Federal Court of Australia

Unlawful carnal knowledge
Whenever, upon the trial for any offence punishable under this
Code, it may be necessary to prove carnal knowledge, it shall not be
necessary to prove the actual emission of seed to constitute carnal
knowledge, but the carnal knowledge shall be deemed complete
upon proof of penetration only: s183 Penal Code.
“Two main elements are required for rape: proof of penetration of
the vagina by the penis, and lack of consent. Presently, if a woman
is unable to establish penetration, or if the assailant only ejaculated
near her vagina, the offence of rape is not proved and the activity
constitutes attempted rape and/or indecent assault both carrying
lesser sentences” Fiji Law Reform Commission, Sexual Offences
Report, 1999 at 12.
Consent and mens rea
The defendant must not only the basic intent to have carnal
knowledge of the woman but must also know or be reckless of the
woman’s lack of consent to the act: See Iliatia Koroiciri v R [1979]
Fj Cr App. 43/79. See S v Bechu, Magistrates’ Court, Levuka, 2
Dec, 1999.
Consent
The current law does not clearly define “consent” or “lack of
consent”: Fiji Law Reform Commission Sexual Offences Report,
1999 at 19.
“It is sometimes felt that rape is the only crime where the onus of
proof appears to shift to the victim; ie. the victim must prove that
she did not give her consent.” Sexual Offences Report at 18.
Therefore, when ascertaining whether consent was obtained, it is
important to maintain focus on the acts of the defendant and not on
the level of resistance offered by the victim.
Consent obtained by force, threats, intimidation
See R v Olugboja (1981) 73 Cr App. 344.
False representations
See R v Case (1885) DEN 580.
Impersonating woman’s husband
See R v Papadimitropoulos (1957) 98 CLR 249 and R v Leonard
Laule (1976) SI Crim Case 29/76.
Fiji Magistrates Bench Book April 2004